The Supreme Court is scheduled to consider whether it will hear cases challenging the constitutionality of the Defense of Marriage Act and California’s Proposition 8 on Nov. 20, according to a series of announcements on Monday on the Supreme Court’s dockets.

The justices are expected to review the possible cases before them and vote on which, if any, of the cases to hear this term, which began earlier this month. Four justices have to agree to hear a case in order for the court to take it.

The court is expected to announce the outcome of that conference, whether it is taking any cases and which requests, called petitions for a writ of certiorari, by Nov. 26.

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Several cases challenging the federal definition of “marriage” as limited only to marriages between one man and one woman have been presented to the court, including a pair of cases decided together earlier this year by the First Circuit Court of Appeals out of Boston, Gill v. Office of Personnel Management and Massachusetts v. United States. The House Republican leaders, who have been defending DOMA in court challenges since the Obama administration stopped doing so in February 2011, believe the court should hear the appeal of that decision.

The Obama administration on Friday announced that it believes the court should instead take the case of Edith Windsor, who recently received a ruling in her favor from the Second Circuit Court of Appeals in New York City.

Two other DOMA challenges, Pedersen v. Office of Personnel Management and Golinski v. Office of Personnel Management, also are scheduled to be considered.

The challenge against Proposition 8, California’s marriage amendment, also was distributed to the justices today. It originally had been distributed for the conference of Sept. 24, but the justices held the case — likely so that it could be considered at the same conference as the DOMA cases, some of which were not fully briefed in time for that conference.

Also on the calendar to be considered that day is Arizona’s appeal of a 9th Circuit decision striking down a state law that ended employee benefits for same-sex spouses.

The Court may not hear all of these cases, of course. The challenges to DOMA are the most likely to be granted certiorari because they involved issues of Federal law. The Arizona case, and the Proposition 8 case, are two cases exclusive to the states involved so the Court could decide not the hear those appeals. However, it’s possible that they will take those cases as well since the legal issues involved in all of these cases are so similar.

About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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Both Circuit Court opinions (1st and 2nd Circuit) and the opinion from the Southern District of New York for which expedited SCOTUS review is being sought found Section 3 of DOMA unconstitutional, although the reasoning was slightly different in each case.

Way back in 2000, when California first voted to ban same-sex marriages, I was of the opinion that the left would respond by making a fundamental strategic mistake; to wit, that they’d litigate the matter and ultimately that the SCOTUS would hold that state laws barring same-sex marriages were Constitutional. After Prop. 8 passed I would have bet money that the left fairly quickly would find itself before the SCOTUS and that afterwards they’d probably learn a harsh lesson about the laws of unintended litigation consequences.

Let’s go ahead and assume the SCOTUS takes the Prop. 8 case. Well, obviously, if the Court strikes down Prop. 8 then the left’s litigation strategy will be vindicated and the Castro will throw a party that might last for decades. But what if the Court upholds Prop. 8? Think about the layers of irony. By litigating against a bar against same-sex marriages — concerning a state that already required equal benefits for same-sex partners in any event — the left de facto and de jure would have ratified every law in every state that bars same-sex marriages. I never understood why they’d take that legal risk. Why not simply push legislatively in various states for civil unions and equal benefit laws?

As far as DOMA goes, that was a horrible law ab initio and Clinton was a dope for signing it. Marriage is not the province of Congress. The Feds could have tackled the full faith and credit issue by other means, or they could have left that issue to the courts. We never needed DOMA. Hopefully it’ll be consigned to the dustbin of history.

Why not simply push legislatively in various states for civil unions and equal benefit laws?

Because some states (the whole damned south, basically) will never, ever, FREAKING EVER vote legislatively or via referendum to give gays and lesbians marriage equality. The only way it will ever happen is judicially.

I never understood why they’d take that legal risk. Why not simply push legislatively in various states for civil unions and equal benefit laws?

That´s not the problem. The problem is that:

Section. 10, US Constitution:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

It may be Constitutional for a state to prohibit that two people marries inside it´s borders, but it´s clearly Unconstitutional for a state to refuse to recognize a marriage made in other state. Besides that, that makes no sense at all.